Citizens United and Freedom of the Press

If you want to read a great article, then go look at Michael McConnell’s paper on Citizens United. He offers a very convincing explanation of why the result is correct on a narrower constitutional ground than what the Court used. Here is the Abstract:

The central flaw in the analysis of Citizens United by both the majority and the dissent was to treat it as a free speech case rather than a free press case. The right of a group to write and disseminate a documentary film criticizing a candidate for public office falls within the core of the freedom of the press. It is not constitutional for the government to punish the dissemination of such a documentary by a media corporation, and it therefore follows that it cannot be constitutional to punish its dissemination by a non-media corporation like Citizens United unless the freedom of the press is confined to the institutional media. Precedent, history, and pragmatics all refute the idea that freedom of the press is so confined.

The result in Citizens United was therefore almost uncontrovertibly correct. No one disputes that corporations, such as the New York Times Company, can editorialize during an election, and other groups performing the press function have the same right, even if they are not part of the traditional news media industry. A holding based on the Press Clause, though, would not have implied any change in constitutional doctrine about campaign contributions, which are not an exercise of the freedom of the press.

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Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.